President Donald Trump is experienced in the art of litigation.
As a successful real estate entrepreneur, he was able to acquire the skills necessary to maneuver the legal playing field in the rough and tumble Manhattan marketplace.
The president has now made a strategic decision to litigate rather than comply with the attempt by Democrats to use their oversight powers to keep a discredited narrative alive.
Recently, a significant change took place in the legal approach that the Trump White House adopted.
For the past two years President Trump’s administration fully cooperated with Special Counsel Robert Mueller’s investigation. More than a million documents were produced, officials were allowed to freely testify, and executive privilege was not exercised.
However, following the release of the Mueller report, the administration has decided to take a different legal approach with respect to what appears to be an unnecessary use of congressional investigative powers.
The president has recently indicated his opposition to having White House personnel submit to the subpoenas peppering Pennsylvania Avenue from overzealous congressional Democrats.
By challenging the Democrats’ efforts to perpetually investigate rather than fulfilling their congressional duties, President Trump increases the likelihood of the Democratically controlled House to be perceived as a “do-nothing” chamber.
White House attorneys are objecting to Democrat subpoenas, which probably means that protracted legal battles will ensue.
The Trump Organization has filed a lawsuit against House Oversight Chairman Elijah Cummings, D-Md., seeking to block a subpoena for the president’s years-old financial records.
Treasury Secretary Steven Mnuchin allowed a deadline to pass, which was given by the Democrat House to turn over the president’s tax returns.
The White House instructed its former personnel security director Carl Kline not to testify before Congress about the process by which the president’s daughter Ivanka Trump and husband Jared Kushner obtained their security clearances. The House has since held Kline in contempt.
Personal counsel of the president Rudy Giuliani pointed out to Politico that the president’s position on the House subpoenas is justified, when considering the partisan political motives of congressional Democrats.
“I think it’s exactly the right legal strategy, Giuliani said. “I doubt there’s anybody in America that thinks this has some legitimate governmental purpose.”
“This is like a judge saying I’m going to hang you, but I’ll give you a trial first,” Giuliani added.
Chairman of the Senate Judiciary Committee Lindsey Graham, R-S.C., fully supports the president’s policy of not complying with what Graham rightly referred to as “a complete partisan thing now.”
With the Muller investigation wrapped up, the Russia-collusion narrative debunked, and an obstruction of justice charge eliminated, Graham accurately compared Democrats to filmmaker Oliver Stone attempting to come up with a plot line for a film dealing the Kennedy assassination.
“I think Congress is going crazy here,” Graham told The Associated Press.
One of the things that has been driving many of the Democrats in Congress insane is the prospect of bringing in former White House counsel Don McGahn to testify. Because the Trump administration has indicated that it may use executive privilege to prevent Congress from subpoenaing McGahn, the media have been invoking the specter of former President Richard Nixon in an attempt to portray the invocation of the constitutional privilege as an illicit act.
The president is legally empowered to resist subpoenas originating from the legislative branch that are designed to obtain information or testimony relating to the executive function. The Supreme Court has viewed this presidential privilege as a part of the separation of powers doctrine, derived from the president’s ability to carry out the duties held by the commander in chief under the Constitution.
The privilege to prevent staffers from testifying and/or withhold documents arises because of the unique need to protect the confidentiality of the advice that assists presidential judgments.
Despite the stilted coverage of most of the media, prior presidents have engaged in similar battles. Former President George W. Bush clashed with Congress after his administration attempted to block testimony from top aides over the firing of several federal prosecutors.
Former President Barack Obama asserted executive privilege to withhold documents related to the gun-trafficking scandal known as Operation Fast and Furious, which resulted in the House holding then-Attorney General Eric Holder in contempt.
The Supreme Court in United States v. Nixon held that when executive privilege is at issue, “…coequal branches of the Government are set on a collision course.” The judicial branch is therefore forced to deal with “the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives.” Such a proceeding “pushes to the fore difficult questions of separation of powers and checks and balances.” The court concluded that “constitutional confrontation between the two branches are likely to be avoided whenever possible.”
Consequently, when dealing with confrontations between the executive and legislative branches, the courts have avoided direct intervention.
In such legal proceedings, the wheels of justice move even more slowly than usual and are likely to slog through the court system eventually making their way up to the High Court.
The bottom-line result will be that the president’s legal battles with Congress are likely to last beyond the 2020 presidential election, thus denying the investigation-obsessed Democrats both their narrative and their pound of flesh.